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Can Bangladesh’s Judiciary Get on the Right Track Under the Interim Government?

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Can Bangladesh’s Judiciary Get on the Right Track Under the Interim Government?

Many are wondering whether the pattern of politicization in the judiciary is repeating, simply with a change in the direction of political bias.

Can Bangladesh’s Judiciary Get on the Right Track Under the Interim Government?
Credit: ID 193750199 © Sergei Babenko | Dreamstime.com

2007 saw the separation of Bangladesh’s judiciary from the executive, which was supposed to introduce a new era into the legal and political landscape of the country. This necessary step, instigated by the then-caretaker government led by Fakhruddin Ahmed, created hope among the people that Bangladesh’s judiciary would finally work independently without any political interference. 

This was a necessary move for democracy: an assurance that justice would be seen by its citizens in an institution committed to the rule of law and with no deference to political caprices. Yet, over a decade and a half later, the question of independence still remains, and the judiciary still struggles to live up to its promise of fair and just governance.

In 2008, when Sheikh Hasina came to power, her government inherited a judiciary that, although notionally independent of the executive, still remained vulnerable to political influence. The judiciary in Bangladesh is significantly affected by corruption, as indicated by the  the National Household Survey 2021 on Corruption in Service Sectors, released by Transparency International Bangladesh (TIB) on August 31, 2022. In that survey, 56.8 percent of those who had interactions with the judiciary reported experiencing corruption. Corruption obstructs justice, deepening societal inequities and undermining public trust. 

There is also a continuing trend toward political favoritism that has managed to change the face of the judiciary. In the minds of many Bangladeshis, it became more an arm of the government’s interests and less an independent protector of citizens’ rights.

The encroachment of the ruling party into judicial decisions started to be highly visible in cases that involved political opposition figures. For example, in 2018 – a national election year – Khaleda Zia, head of the Bangladesh Nationalist Party (BNP), was convicted on corruption charges. Given that charges against Zia had existed for a very long time, many considered the sudden and speedy disposition of this case to be indicative of a political motive. 

Not only political figures but also activists, journalists, and even ordinary citizens who criticized the government have faced legal consequences, often under laws that critics argue were misused to suppress dissent.

Among those, the 2018 Digital Security Act, now the Cyber Security Act, is one of the most cited. Though officially meant for the purpose of fighting cybercrimes, the Cyber Security Act has been highly criticized by human rights organizations, including Amnesty International, since its application seems to be directed against anyone who dares raise a critical voice against the government. 

Hundreds of journalists, social media users, and activists were arrested under this act for posts or articles considered “anti-state” or “defamatory.” From 2018 to 2023 a total of 1,436 cases were filed against 4,520 people under this draconian law. This trend gave rise to apprehensions that the judiciary was not defending freedom of expression as guaranteed by the constitution. 

The less-than-robust actions of the judiciary in such cases had many wondering whether it was really independent enough to serve as a check against the erosion of citizens’ constitutional rights. Observers said that cases filed against government critics often moved briskly through the courts, whereas cases filed by opposition members against figures of the ruling party were always subjected to serious delays. Such patterns contributed to perceptions of a judiciary that was not acting independently but was advancing political priorities promoted by the ruling administration. Bribes and influence were not uncommon in the litigation process, affecting everything from case filing to the final verdicts.

This deep-seated distrust in the judiciary has far-reaching implications for Bangladesh’s political and social landscape. Citizens grow increasingly disenchanted with the legal system’s ability to mete out justice, and their faith in democratic institutions wanes. Legal scholars and analysts have warned that a judiciary seen as biased or politicized undermines public confidence in the rule of law, thus making it even more difficult for any country to maintain democratic integrity. 

This depletion in the independence of the judiciary further installs fear in the minds of people. Often, they will avoid seeking justice, knowing well that their cases may be decided based on political or economic influence rather than based on their merits.

The proper balance among the three branches of governance – including the judiciary – is integral for the healthy functioning of a democracy. However, in Bangladesh, the steps taken by the judiciary during the past decade have turned it into an institution in which political loyalty often supplants neutrality. In this, Bangladesh’s judicial branch was mirroring changes in the entire system of governance. The consequence is a judiciary commanding neither the confidence nor esteem of the people it is supposed to serve, with many viewing it as a tool used to consolidate power rather than challenge it.

Since the ouster of Hasina, the recent political changes have rejuvenated the demand for judicial reform and restoration of true independence. There should be a structural sea change to reestablish the judiciary’s role as impartial. These range from demands for a more transparent process of appointing judges to financial and administrative independence of the judiciary to reduce its dependence on the executive. Similarly, civil society organizations are also calling for the abolition or amendment of such laws as the Cyber Security Act.

As the country moves on from Hasina’s legacy, Bangladesh’s judiciary stands at the crossroads. The way ahead lies in tackling these chronic legacies, which have not let the judiciary serve its due purpose – and without an independent judiciary, democracy remains a mere word. As Bangladesh works to restore hope in its institutions once again, there needs to be an urgent push for a truly independent and neutral judiciary. The rule of law can only be justly and rightly served in Bangladesh through genuine reforms, transparency, and accountability. Only then can it serve as a bedrock for democratic governance.

Under the Yunus administration, people and experts are hopeful that Bangladesh’s judiciary will achieve full independence. However, nearly three months into the administration, it faces the challenge of restoring public trust and genuinely separating itself from political influence.

There have been a growing number of arbitrary arrests of Awami League leaders and activists. While some suspects may indeed be guilty of real crimes, the haste with which such apparently politically motivated charges have been pressed gives cause for alarm over the possible abuse of judicial power.

For example, cricketer and newly elected AL Member of Parliament Shakib Al Hasan faced significant legal issues following Hasina’s ouster. He was among 147 individuals charged in a murder case linked to political unrest during her resignation. However, Shakib’s involvement was quickly questioned, as he was playing in the Global T20 Canada cricket league during the July-August uprising. This discrepancy has fueled concerns over the potential manipulation of judicial power for political ends, casting doubt on the impartiality of the legal process.

These detentions, replete with suspicious circumstances, have again brought into question the independence of the judiciary. When actual wrongdoing occurs, resorting to trumped up or inflated charges undermines the rule of law. The arrests have led many to wonder whether a pattern of politicization in the judiciary has simply recurred with a change in the administration.

Moreover, in the court premises, there have been rising tempers over clashes and political harassment. Lawyers affiliated with the BNP and other opposition parties often harass lawyers who were affiliated with the AL.

On the other hand, some claim that only BNP supporters are being appointed as judges, while others argue that only individuals associated with Bangladesh Jamaat-e-Islami are being appointed. This situation recalls past arrangements that raised concerns about political influence.

These trends raise red flags over the direction of the judiciary under a non-political government committed to reform.

The path of genuine judicial independence is very, very difficult, but from the point of view of democracy and social fabric in Bangladesh, this is a road that must be undertaken with utmost urgency and resolve. Only when the problems are faced head on can Bangladesh create a legal system steeped in the rule of law and instill confidence in its courts.

The current interim government may introduce some effective measures to strengthen the judiciary, which the entire country eagerly demands. However, history shows that if a decision by a non-political government displeases the next elected government, it often faces reversal. Therefore, the true impact of any reforms made by the interim government will only become clear under the rule of the next elected government.